GRANTED IN PART: February 3, 1995 GSBCA 12639 JAY P. ALTMAYER, NANCY HIRSCHLER, JANE BESKIN, AMSOUTH BANK, N.A., AS TRUSTEE UNDER THE WILL OF CLAIRE POLLOCK, AND JAY P. ALTMAYER AND AMSOUTH BANK, N.A., AS CO-TRUSTEES UNDER THE WILL OF MARVIN C. ALTMAYER, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. W. Alexander Moseley of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, AL, counsel for Appellant. Robert W. Schlattman and Max J. Brown, Office of General Counsel, General Services Administration, Washington, DC, and Diana Parks Curran, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and DeGRAFF. DANIELS, Board Judge. Renovation of a building, for lease to the General Services Administration (GSA), was not completed by the date originally anticipated. Lessor1 maintains that the Government caused this delay and is liable for damages flowing from it; GSA contends that the parties shared the responsibility for the delay and that the Government consequently should incur no liability. We find ____________________ 1 The property involved in this case is owned by Jay P. Altmayer, Nancy Hirschler, Jane Beskin, AmSouth Bank, N.A., as trustee under the will of Claire Pollock, and Jay P. Altmayer and AmSouth Bank, N.A., as co-trustees under the will of Marvin C. Altmayer. Transcript at 24-25. We refer to these owners collectively as "Lessor" in this opinion. that the Government caused the delay, but that the damages it owes are considerably less than the Lessor asserts. Findings of Fact 1. On December 30, 1991, GSA awarded to Lessor a contract for the lease of office and related space in a building in Savannah, Georgia. The space was to be used for a United States Attorney's Office. Appellant's Supplemental Appeal File, Exhibit 3; Appeal File, Exhibit 1. As amended on May 20, 1992, the contract was for the lease of 26,050 net usable square feet of space during the period from January 1, 1993, through December 31, 2002. The annual rental was to be $455,354 during the first five years of the lease, and $455,875 during the next five years. Appeal File, Exhibit 1 at supplemental agreement 1. 2. Notwithstanding the specified lease dates, the contract also provided that "[t]he Government shall pay rent only when the entire premises or suitable units are ready for occupancy," and that "[t]he commencement date of the firm term will be a composite determined from all dates of incremental occupancy." Appeal File, Exhibit 1 at 6 of General Clauses. 3. The dates of initial occupancy could not be known in advance because the building had to be renovated to suit the Government's needs. The contract required Lessor to build out the space in accordance with specifications contained in the solicitation for offers and plans which would be provided by the Government. Appeal File, Exhibit 1 at page 2 of standard form 2. As amended on May 20, 1992, the contract mandated that the alterations be completed within 240 days from receipt of approved Government space layouts or January 1, 1993, whichever came later. Id. at supplemental agreement 1. 4. The Government gave its approved layout plans to Lessor on June 30, 1992. Transcript at 35-36. Thus, in accordance with contract requirements, the building interior was to have been renovated by February 25, 1993. 5. The contract contained two standard clauses which are relevant to this appeal. One, entitled "Time Extensions," provides: The lease will not be terminated nor the Lessor charged with resulting damage if delays arise from unforeseeable causes beyond the control of the Lessor and/or his contractors, subcontractors, suppliers, or another Government contractor. However, the Lessor shall notify the Contracting Officer, in writing, of any delay within 10 calendar days after it begins. The Contracting Officer shall ascertain the facts, determine the extent of the delay, and grant extensions when justified. Appeal File, Exhibit 1 at 2 of General Clauses. 6. The other standard provision in the contract which plays a part in this case is a Changes clause. This clause permits the contracting officer to make changes within the general scope of the lease in specifications, work or services, amount of space, and facilities or space layout. The clause provides: If any such change causes an increase or decrease in the Lessor's cost of, or the time required for, performance under this contract, whether or not changed by the order, the Contracting Officer shall modify the lease by (1) making an equitable adjustment in the rental rate, (2) making a lump sum price adjustment, or (3) revising the delivery schedule. Appeal File, Exhibit 1 at 17 of General Clauses. 7. The contract does not contain a suspension of work clause, such as the one stated in the Federal Acquisition Regulation (FAR) at 48 CFR 52.212-12 (1991), or a Government delay of work clause, such as the one in the FAR at 48 CFR 52.212-15. Appeal File, Exhibit 1. 8. The contract included prices for various items which might be ordered by the Government in the course of alteration of the building. Some of these prices were in the form of lump sum payments, and others were in the form of increases to the rental rate. Appeal File, Exhibit 1 at 7 of Solicitation for Offers. Among the items for which lump sum payments were to be made were carpet (both 64 ounce "standard" and 73.8 ounce "above standard," each priced on a per square yard basis) and wood trim (crown molding, chair rail, and baseboard, each priced on a per linear foot basis). Id. at 2 of Exhibit D, continuation page 4 of standard form 2. 9. Lessor hired Haas Construction, Inc., to be the general contractor for all the interior renovation work on the building. Transcript at 27, 92. Lessor and Haas Construction entered into a contract for demolition efforts before any renovation began, and "kept using this contract with attached change orders every time we decided to do something else." Id. at 33-34; Appellant's Exhibit 8. In early August, 1992, James Haas, Haas Construction's president, made an initial schedule of the tasks required to complete the job, linking them together in a logical manner to establish a critical path which would lead to completion within the timeframe established by the contract. Mr. Haas expected to finish the work by February 9, 1993. Transcript at 96-101; Appellant's Supplemental Appeal File, Exhibits 29, 30. The Government has not challenged the reasonableness of this schedule. 10. In his initial schedule, Mr. Haas planned to install wood trim, paint walls, and install vinyl wall covering on 15 days (five days on each of three floors) between November 17, 1992, and January 5, 1993, and install carpets on 15 days (again, five per floor) between December 15, 1992, and January 19, 1993. These were the last tasks on the critical path, other than final clean-up (seven days per floor, running until January 28, 1993) and completion of punch list items (eight days, from January 29 to February 9, 1993). Transcript at 129-31; Appellant's Supplemental Appeal File, Exhibit 29. 11. From the start, the Government's actions frustrated the ability of Haas Construction to follow this schedule. The initial plans were incomplete. Among other deficiencies, they lacked detail and finish schedules for the carpet and the wood trim. Transcript at 36, 95, 197. GSA expected that the finishes, which were being selected by personnel of the U.S. Attorney's Office in Savannah, would be identified by the end of August. Appeal File, Exhibit 12. This did not occur, however. 12. During the fall of 1992, Lessor and others acting on its behalf notified the Government several times about the need for a finish schedule, incorporating information about carpet and wood trim selections. Transcript at 101-02, 203. On September 25, for example, Lessor's architect complained that "time is of the essence on this project and we hesitate to order any finishes until we have final approval from the GSA." Appellant's Supplemental Appeal File, Exhibit 36. On October 16, the architect told the contracting officer that to meet the construction schedule, Lessor needed finish information quickly. Id., Exhibit 40; Transcript at 37-38. The Government revised its space layout plans and delivered a finish schedule on October 26. Appeal File, Exhibits 14, 19; Appellant's Supplemental Appeal File, Exhibit 44; Transcript at 96, 103. Haas Construction was told not to use the schedule, however, because it was going to be revised. Transcript at 103. 13. The lack of information from the Government as to the carpets was particularly critical because the manufacturer could not deliver the carpet material until six to eight weeks after an order was placed. Transcript at 40; Appellant's Supplemental Appeal File, Exhibit 80. The Government gave Lessor a revised finish schedule, which included a better grade of carpet than either of the ones priced in the contract (Finding 8), in November. Transcript at 41, 105-06. Lessor alerted GSA to the need for agreement on a different price; in early December, the contracting officer told Lessor to order the material and then began price negotiations. Transcript at 42; Appeal File, Exhibits 26, 29, 31. 14. Lessor placed an order for the required carpet on December 7. Appellant's Supplemental Appeal File, Exhibit 59. On December 22, however, the contracting officer became concerned that Lessor's price for this material would be too high, so he directed that the order be put on hold while price negotiations continued. Transcript at 42, 105, 165; Appeal File, Exhibits 30, 31. These negotiations dragged on through January and February of 1993. Appeal File, Exhibits 32, 41; Appellant's Supplemental Appeal File, Exhibit 74; Transcript at 167. 15. Meanwhile, matters were proceeding no better with regard to the wood trim. Lessor had priced its materials on the assumption that it would provide painted pine (a soft wood), as permitted by the contract. Transcript at 43, 116, 201. In November, the Government told Mr. Haas that it wanted hardwood trim with a "medium mahogany" stain. Mr. Haas explained that this change would increase the contract price. During December, 1992, and January and February, 1993, he, the contracting officer, and a representative of the U.S. Attorney's Office discussed available woods and stains, and the increased prices associated with each. Id. at 44, 115-18, 201-02; Appeal File, Exhibits 37, 38, 49, 85. On February 24, GSA directed Lessor to order poplar wood and apply a medium mahogany stain to it. Appeal File, Exhibit 51; Transcript at 203-04. This did not settle the matter, however; Mr. Haas reiterated his previous request for a specific stain, and the contracting officer acknowledged that he could not yet designate one. Appeal File, Exhibits 52, 53. Additionally, a misunderstanding remained about prices. Id., Exhibit 86. 16. Lessor was becoming increasingly concerned that the Government's indecision about several items, including carpet and wood trim, had made timely completion of the renovation work impossible. Transcript at 45. On January 7, 1993, Lessor asked for an adjustment to the contract price and a time extension for the build-out. Appeal File, Exhibit 34. The contracting officer promised a response by January 26, but none was forthcoming. Id., Exhibit 41; Transcript at 115. Another letter from Lessor, dated February 9 and requesting an extension to June 1, produced no response, either. Appeal File, Exhibit 46; Transcript at 50, 168. 17. The contracting officer testified that on three or four occasions during the winter of 1992-93, he told Mr. Haas that as soon as all the renovation work except installation of the carpet and wood trim was completed, he would immediately begin the payment of rent to Lessor. Transcript at 171-72. Mr. Haas testified that he could not recall ever being told this, and that in any event, it was a topic for discussion not with him, but with Lessor, which held the contract with GSA. Id. at 316-17. Given the vast correspondence between the parties, and the fact that this highly critical matter was never discussed in any of it, plus Lessor's conscious decision not to complete some of the outstanding work until the carpet had been installed (Finding 19, especially (a)), we find the contracting officer's testimony not credible and Mr. Haas's contrary statement to be true. We similarly do not find credible the contracting officer's assertion that he made a similar statement at the meeting which is discussed in the next paragraph, and at which both he and Mr. Haas were present. 18. On March 1, 1993, a meeting among GSA, U.S. Attorney's Office, and Lessor representatives was convened to resolve outstanding problems regarding the construction. Transcript at 51, 169-70. Considerable progress was made with regard to both the carpet and the wood trim. Id. at 52. The contracting officer gave Lessor a letter, dated March 1, in which he granted an extension of time to June 1 in which to complete the renovation, but refused to acknowledge any monetary liability for the delay because "the project was clearly 45 to 60 days from being ready for the installation of the carpet and the finish trims." "Therefore," he concluded, "it is our opinion that our negotiations for the revised carpet and trim selections have not delayed the progress of the construction as of this date." Appeal File, Exhibit 56 at 5; Transcript at 53, 179, 269. In permitting more time for completion of construction, the contracting officer was acting under authority of the contract's Time Extensions clause, which is set out at Finding 5. Transcript at 191. 19. GSA's contention that Lessor was concurrently responsible for delays in project completion is buttressed by a long list of particular items which were not complete by March 1, 1993, the date of the meeting and the time extension letter. As discussed below, in the lettered subparagraphs of this Finding, the agency's contention is not supportable. The contracting officer conceded at hearing that during the entire construction period, the Government never complained to Lessor that work on the building was not proceeding sufficiently fast. Transcript at 207-08. The items described by the contracting officer, and in counsel's brief, were relatively minor and susceptible to prompt completion. Lessor reasonably anticipated that carpet could not be delivered for six to eight weeks after it was ordered. Finding 13. Carpet installation remained on the critical path during the February-to-April time period. Appeal File, Exhibits 44, 45; Appellant's Supplemental Appeal File, Exhibit 105. Given Haas Construction's reasonable schedule for the renovation work (Findings 9, 10), GSA should not have expected the job to be finished for several weeks after the carpet was ordered -- six to eight weeks for delivery, three weeks for carpet installation, and additional time for clean-up and completion of punch list items. See Finding 10. There was no reason for Lessor to rush to finish the other work earlier, and there is no evidence that completion of that work kept the construction from being finished earlier than it was. a. The contracting officer noted that as of March 1, the rest rooms were "totally inoperable." Transcript at 172. Mr. Haas explained that this was by design. If plumbing fixtures are installed before the end of a construction job, he has found, workers are likely to abuse them -- painters and sheetrock mechanics clean out their tools in the sinks and toilets, and workers use rags when toilet paper is unavailable. The result is damage to the fixtures and the rest rooms, which causes unnecessary expense. Id. at 322. GSA's on-site representative in Savannah, John Kolar, agreed with this analysis. Id. at 264. The fixtures were installed during the last two weeks of work on the project and did not cause any delay to the completion date. Id. at 264-65, 322. b. The contracting officer identified two items regarding the main elevator as not having been finished by March 1 -- the cab was incomplete and a telephone had not been installed in it. Transcript at 172, 174. The ordering of the cab had been delayed by GSA's making a decision on the dispatch interval it desired, and the cab itself was complete by the end of March. Id. at 290-91, 318. Installation of the telephone took only a couple of hours. Id. at 325-26. c. The main lobby was not finished by March 1. Transcript at 172. This was not a critical path item, however, and its completion did not delay the project. Id. at 319. d. On March 1, the main entrance to the building was blocked by debris and equipment, and a security barrier was in place around the outside of the structure. Transcript at 172-73. There is no evidence that the exterior obstructions were present at project completion, however, or that they ever delayed any critical task. The barricade was constructed of two-by-fours and plywood; disassembly took less than a day. Id. at 270, 320. e. The contracting officer also complained that on March 1, the stairwells were not finished -- handrails had not been installed, painting was incomplete, and the areas were full of debris. Transcript at 173. The handrails could not be installed until GSA had decided their height, however -- something which was done later and did not delay the project. Id. at 321. Mr. Kolar testified that incomplete painting of the areas would not have precluded the agency from accepting the building for occupancy, and he properly said that anyone would reasonably expect that trash would be removed on final clean-up. Id. at 246, 274-75. f. The contracting officer noted additionally that by March 1, the interior walls had not been painted and the wallpaper had not been hung. Transcript at 173. Mr. Haas testified credibly that the walls were ready for papering by January, and that Mr. Kolar's contrary conclusion (on which the contracting officer based his statement) was grounded on a misunderstanding of how the walls were prepared. Id. at 319-20. We also credit Mr. Haas's testimony that unless one installs wood trim before painting and papering walls, "it's very difficult, if not impossible, to keep [the wood stain] from getting on the vinyl wall covering and the paint. It's also a much more expensive operation, more labor intensive, to try to finish [trim] over a finished product." Id. at 323. His decision not to complete the painting and papering prior to March 1 made good sense. g. The contracting officer was additionally concerned that two more construction items not only were not complete by March 1, but also remained incomplete as late as May 18. These were the installation of two security doors and performance of various punch list items. Transcript at 175; Appeal File, Exhibit 78. The security doors were not Lessor's responsibility, and GSA's determination that the building was fit for occupancy (Finding 22) was made even though the doors had not yet been installed. Transcript at 53, 177, 202-03, 275. Completing punch list items is normally the last step in a construction contract, and it was done at the end of the job, as Haas Construction's critical path schedule had always anticipated. Id. at 275, 289-90; see Finding 10. h. In their brief, Government counsel mentioned other aspects of construction which were not complete as of March 1 -- fire control systems, riser standpipes, fireproofing of stairwells, and renovation of the building's exterior. Respondent's Post-Hearing Brief at 8-9. GSA has not shown how any of these items delayed the Lessor in making the building ready for occupancy, however, beyond the time which resulted from the Government's indecision as to carpet and wood trim selections. 20. By letter dated March 3, 1993, the contracting officer gave Lessor the Government's carpet selections, designated by room number. Appeal File, Exhibit 57; Transcript at 121. The wood trim matter was more troublesome. On March 3, GSA said it wanted "another wood," rather than poplar; on the 4th, it substituted white pine; and on the 11th, it selected a walnut finish, rather than mahogany. Appeal File, Exhibits 57-59. GSA and Lessor agree that all finish selections were not completed until March 15th. Transcript at 120; Appeal File, Exhibit 83 at 1; Respondent's Post-Hearing Brief at 13. 21. Haas Construction, on Lessor's behalf, then ordered, received, and installed the carpet and trim. The firm also completed all other necessary renovation work. Transcript at 120-21. During the delay period, Mr. Haas "was working full time trying to get the issues resolved, get answers to the questions and get the job finished on time." Id. at 134. According to a GSA contracting officer's notes, the carpet was ordered two days after the finish selections were completed -- on March 17 -- and was supposed to arrive at the job site by April 15. Appeal File, Exhibit 63. (The record does not reveal the actual delivery date.) On May 28, 1993, the City of Savannah granted a certificate of occupancy for the building; the Government acknowledged that the lease term began and commenced paying rent on that date. Transcript at 54-57, 128, 178-79; Appeal File, Exhibit 83 at 2. 22. On June 7, 1993, Lessor sent to the contracting officer a certified claim in the amount of $195,945.04. Appeal File, Exhibit 81. The claim consisted of the following elements: a. Amount by which the price of carpet escalated during the delay period: $649. b. Haas Construction's unabsorbed home office overhead during the delay period: $30,184.74. c. Haas Construction's extended job site overhead: $48,677. (This amount includes $38,250.60 for burdened salaries of Haas Construction supervisory personnel, $4,062.60 of which is designated as overtime.) d. Haas Construction profit markup of ten percent on the total of costs in categories (a), (b), and (c): $7,951.07. e. Lessor's profit markup of ten percent on Haas Construction's total invoice (categories (a) through (d)): $8,746.18. f. Lessor's loss of rental income caused by the delay: $93,535.20. g. Electricity costs for the building during the delay period: $6,201.85. 23. By decision dated August 30, 1993, the contracting officer denied this claim in its entirety. Appeal File, Exhibit 83. He determined -- that the additional time spent to resolve the carpet and trim issues had no adverse [e]ffect on the overall completion of the building being renovated for occupancy . . . . The delay of which you complained was not a result of GSA's action, but rather resulted from the numerous items which remained unfinished or uncompleted after carpet and trim were selected and confirmed by GSA in March of 1993. Id. at 3. 24. At hearing, Lessor revised its claim to $211,078.21. Appellant's Exhibits 28, 29. The amended claim consists of the following elements (using the categories of the original claim): a. Amount by which the price of carpet escalated during the delay period: $649.20, plus a ten percent overhead markup on this sum ($64.92), for a total of $714.12. b. Haas Construction's unabsorbed home office overhead during the delay period: $29,305.83. c. (1) Haas Construction's extended job site overhead: $11,127.58; (2) supervision costs during the delay period: $32,585.04; (3) escalation damages (overtime costs of supervisory personnel), $624.34, plus a ten percent overhead markup on the last sum ($62.43), for a total of $686.77. The total of these amounts is $44,399.39. d. Haas Construction profit markup of ten percent on the total of costs in categories (a), (b), and (c): $7,441.93. e. Lessor's profit markup of ten percent on Haas Construction's total invoice (categories (a) through (d)): $8,186.13. f. Lessor's loss of rental income caused by the delay: $114,946.87. g. Electricity costs for the building during the delay period: $6,083.94. 25. We make the following findings of fact relative to the individual elements of the claim as amended at hearing: a. The cost of the carpet ordered by Haas Construction was twenty cents per square yard, or a total of $649.20, more when the order was placed than it was during the previous fall, when the order would have been placed but for the Government's delay in selecting carpet material. Appellant's Supplemental File, Exhibit 86; Transcript at 136. b. Haas Construction's records show that the Haas Construction extended job site overhead expenses for which Lessor seeks reimbursement include transportation, lodging, meals, job site telephone, pager, trash removal, photographs of the job site, delivery service, and miscellaneous expenses. Appellant's Exhibits 18, 22; Transcript at 71. c. The Haas Construction supervision costs during the delay period include the salaries of two employees, each burdened by various taxes. The expenditure on salaries, and the calculations of the burdens, are both documented. The amount claimed at hearing as supervision costs does not include payments for overtime work. Appellant's Exhibits 20, 21, 26; Transcript at 74-80. d. On change orders issued to Haas Construction on this job, a ten percent markup for overhead and another ten percent markup for profit were standard. Transcript at 137- 38. e. The contract between Lessor and Haas Construction was amended to provide that Lessor was obligated to pay its general contractor $88,047 for delay costs. Appellant's Exhibit 8 at change order 14. f. Lessor incurred bills for electricity consumed in this building, during the delay period, in an amount at least as much as the amount claimed. Appellant's Exhibit 17; Transcript at 57. Discussion The parties have asked the Board to resolve two questions: First, which of them was responsible for the delay in completion of the renovation work on the building? Second, if the Government caused the delay, what is the measure of Lessor's damages? Responsibility for delay The facts make clear that the Government's failure to select carpet material until March 1993 -- after the date initially contemplated for the end of all construction -- caused the late completion of the work. See Finding 20. Installation of the carpet was on the critical path for construction; until it was done, the renovation could not be finished. Because of the long lead time between ordering and delivery of the material, and the fact that carpet installation, final clean-up, and performance of punch list items could not be undertaken until delivery had occurred, the Government's delay in giving ordering instructions held up the whole job. The fact that numerous small items were incomplete on the date that the contract envisioned Government occupancy of the building is irrelevant; there was no reason, given the need to wait for carpet installation, for Lessor to complete the other items earlier than it did. Work on the other items did not delay project completion. Finding 19; see Haney v. United States, 676 F.2d 584, 595 (Ct. Cl. 1982) (as to critical path method). There is no evidence in the record that installation of the wood trim and the carpet, and performance of tasks that came after that on Haas Construction's critical path, Findings 9, 10, was done at other than a reasonable pace or in any other way caused the totality of the construction to be completed later than it was. Damages The law is clear that if the Government caused the delay, it is liable for resulting damages, Wilner v. United States, 24 F.3d 1397, 1399 n.5 (Fed. Cir. 1994 (en banc)); Luria Brothers & Co. v. United States, 369 F.2d 701, 709 (Ct. Cl. 1966); Robert J. DiDomenico, GSBCA 5539, 82-2 BCA 16,093, but if both parties contributed to the problem, neither can recover "unless there is in the proof a clear apportionment of the delay and expense attributable to each party," William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984) (citations omitted). The Government being at fault here, it is liable for damages. Lost rent The largest element of Lessor's claim for damages is for rent not received for the period between the date on which renovation should have been completed and Government occupancy begun -- February 25, 1993 -- and the date on which actual completion and occupancy occurred -- May 28, 1993. Both the contract and case law make clear that Lessor is not entitled to this rent. The contract itself provides that rental payments shall not begin until "the entire premises or suitable units are ready for occupancy." Finding 2. Case law establishes that when Government delay occasions later-than-anticipated commencement of rental payments, compensation may be made only for increases in costs of performance; loss of rental income, although an economic detriment, is not a cost of performance and therefore is not compensable for the delay. Coley Properties Corp. v. United States, 593 F.2d 380, 385 (Ct. Cl. 1979); see also S.S. Silberblatt, Inc. v. United States, 3 Cl. Ct. 644, 647 (1983); Savoy Construction Co. v. United States, 2 Cl. Ct. 338, 342 (1983); Southwest Marine, Inc., ASBCA 39472, 93-2 BCA 127,763.2 Costs incurred by Lessor The only actual cost that Lessor itself claims to have incurred during the delay period is charges for electricity consumed in the building. But for the delay, these charges would ____________________ 2 Our contrary holding in 301 Howard Street Associates v. _______________________________ General Services Administration, GSBCA 10971, et al., 94-1 BCA ________________________________ 26,450, at 131,600, is not controlling. The panel in that case misunderstood the Coley decision; it thought that the plaintiff _____ there was asking only for consequential damages, whereas it actually also sought lost rent for the building under construction for the Government. Reconsideration denied, 94-2 _______________________ BCA 26,697. Because this aspect of 301 Howard Street is __________________ inconsistent with an express holding of our appellate authority, it is not good law. not have been incurred. Lessor is entitled to recover $6,083.94 it paid for the electricity. Costs incurred by Lessor's general contractor Lessor also claims several amounts on behalf of its general contractor, Haas Construction, Inc. The principal elements of this part of the claim are extended home office overhead, extended job site overhead, and direct costs of supervision during the period of delay. Unabsorbed home office overhead Extended home office overhead, and the many Court of Appeals decisions concerning it, are discussed at length in Ranco Construction, Inc. & Reese Construction, Inc., a Joint Venture v. General Services Administration, GSBCA 12051(11312)-REIN, 94-2 BCA 26,946. As we explained there, home office overhead consists of various expenses which benefit a business as a whole, and where the Government disrupts the stream of direct costs against which these expenses are charged, it must compensate the contractor for the disruption. Entitlement to extended home office overhead during a period of delay occurs when -- (1) the Government . . . caused a suspension, disruption, or delay in contract performance; (2) the contractor [was] consequently . . . placed in a standby position, such that work was not being performed on the contract; and (3) the contractor [was] unable to take on other work, such that it could have mitigated unabsorbed overhead when that overhead was incurred. Id. at 134,182. The second element is not present here; although GSA delayed completion of the project, it never placed Lessor (or even Haas Construction) in a standby position, such that work was not being performed on the contract. Instead, due to the agency's dilatory decisionmaking regarding the finish schedules, Haas Construction had to perform additional work throughout the period of time that construction continued. This additional work created a stream of income against which extended home office costs might be charged. We consequently do not grant those costs as a separate element in accordance with a mathematical calculation known as the Eichleay formula, as Lessor requests. Eurostyle Inc. v. General Services Administration, GSBCA 12084, 94-2 BCA 26,891, at 133,857 (citing Community Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1582 (Fed. Cir. 1993)). Job site overhead and supervisory personnel salary costs Lessor contends that the Government-caused delay resulted in additional construction costs. Lessor does not allege that the delay increased the cost of performance of any particular aspect of the work itself. Rather, it maintains that Haas Construction had to keep supervisory personnel at the job site throughout the period of time after construction would have been finished but for the Government's delaying finish selections, and before the job was finally completed. Lessor seeks recovery of the burdened salary expenses of those individuals and the overhead costs directly associated with their stay at the site. GSA's only response is to assert that the supervisors remained at the building to monitor work that Lessor could have finished before the delay period began. The individuals did monitor small amounts of such work during the period in question, while they were also overseeing the installation of wood trim and carpet and the performance of tasks which, because of the nature of construction progress along a critical path, could not be done earlier. We have already found, however, that Lessor need not have completed the work to which GSA makes reference by the end of the originally-anticipated construction term, because the time for completion of all work was controlled by the earliest date on which carpet could be ordered.3 We conclude that GSA's waiting until March to conclude its finish selections, Finding 20, caused Haas Construction to keep its supervisory personnel on the job after the initial date for project completion and, given the reasonable pace at which work continued once the Government made its selections, until the project was done. The reasonableness of the claimed costs of Haas Construction's supervisors' salaries during the delay period is not challenged, and the expenses are fully documented. Finding 25(c). The job site overhead expenses associated with those supervisors are not challenged, either, and they are documented as well. Finding 25(b). These costs, while called "overhead" by Lessor, are actually direct costs of contract performance. We hold that GSA is liable for the entire claimed cost of the salaries, as burdened -- $32,585.04. GSA is liable for the additional direct costs associated with the supervision, as well -- $11,127.58. ____________________ 3 To the extent that it might be argued that Lessor is seeking recovery of costs of supervision of work which could have been performed during the anticipated construction period, there is no reason to believe that the amount of time to perform this work was greater than the amount of time the same personnel devoted to tasks made necessary during that period by additional Government requirements -- innumerable discussions about finish selections. By way of jury verdict, we consider these two considerations a wash. See Atlas Construction Co., GSBCA 7903, ___ _______________________ et al., 90-2 BCA 22,812, at 114,564. Escalation costs Lessor maintains that it is entitled to an additional $624.34 in escalation damages. Haas Construction incurred this amount of overtime costs for its supervisory personnel, and Lessor says this was because it accelerated work during the period of time under discussion, to finish in less time than was originally anticipated after the ordering of carpet material. GSA suggests that we dismiss this element of the claim for lack of jurisdiction, on the ground that it was never presented to the contracting officer for decision. We reject the suggestion. A contractor's request to a contracting officer for the payment of money may be considered a claim if it meets three requirements: "(1) the demand or assertion must be in writing, (2) the money must be sought as a matter of right, and (3) the writing must set forth a sum certain." P. A. Cavanagh Co. v. General Services Administration, GSBCA 12661, 94-2 BCA 26,772, at 133,161 (quoting Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1580 (Fed. Cir. 1992)). Lessor fulfilled these requirements in its claim of June 7, 1993; although the demand for compensation for overtime salary payments was not set out as a separate category, it was in writing, sought as a matter of right, and identified as a sum certain. Finding 22(c). We have jurisdiction to consider this element of the claim. Lessor has not met the tests for establishing entitlement to reimbursement, however. Our appellate authority has held -- [I]n order to recover for the increased costs of acceleration under a changes clause, plaintiff must establish three things: (1) that any delays giving rise to the order were excusable, (2) that the contractor was ordered to accelerate, and (3) that the contractor in fact accelerated performance and incurred extra costs. Norair Engineering Corp. v. United States, 666 F.2d 546, 548 (Ct. Cl. 1981).4 Lessor's claim founders on the second and third prongs of this test. There is no evidence of an order to accelerate performance or of the fact of acceleration. Elrich Contracting, Inc. v. General Services Administration, GSBCA 10936, 93-1 BCA 25,316, at 126,142 (cited approvingly in ____________________ 4 The Board established two additional requirements in M.S.I. Corp., GSBCA 2429, 68-2 BCA 7377, at 34,315, and ____________ restated them in Utley-James, Inc., GSBCA 5370, 85-1 BCA __________________ 17,816, at 89,107 (1984). The Court of Claims stated that "as these are in effect equivalent to the requirement of an order to accelerate, we do not insist on them." Norair, 666 F.2d at 548 ______ n.5. Interstate General Government Contractors, Inc. v. West, 12 F.3d 1053, 1059 (Fed. Cir. 1993)). Increase in material cost Haas Construction paid $649.20 more for the carpet when it ordered the material in March, 1993 -- as necessitated by the Government's prolonged indecision as to precisely what carpet it wanted -- than it would have paid if it had ordered the material during the previous fall, as it had anticipated. Finding 25(a). This increased cost was the result of the Government's changed time requirements. The Government is consequently liable for the increase. Singleton Contracting Corp., GSBCA 9614, et al., 90-3 BCA 23,125, at 116,108. Markups Lessor seeks, as an element of damages, three markups on the costs incurred by Haas Construction -- Haas's profit (ten percent), Lessor's profit on Haas's total amount (an additional ten percent), and, on the supervisors' overtime payments and the increased material cost, ten percent overhead before the profit markups are applied. In determining whether profit is appropriate, "[t]he key is always to put the contractor in as good a position as he would have been but for the defendant's wrongful action." Bennett v. United States, 371 F.2d 859, 864 (Ct. Cl. 1967). Following this guide, the Board generally allows profit for adjustments under a contract's changes clause which entail additional (or at least different) work, but not for delay which is compensable under a suspension of work clause. Richerson Construction, Inc. v. General Services Administration, GSBCA 11161-R, et al., 93-3 BCA 26,206, at 130,440; Pittman Construction Co., GSBCA 4897, et al., 81-1 BCA 14,847, at 73,309-10. The Federal Acquisition Regulation's standard suspension of work clause and Government delay of work clause explicitly exclude recovery of profit. 48 CFR 12.502, 52.212-12, -15 (1993). The costs of additional jobsite supervision and the overhead associated with that supervision, as well as the incremental costs of carpet material, would be compensable under the suspension of work clause if one were in the contract. Lessor contends that because the contract does not include such a clause, Finding 7, recovery must be under the changes clause, and because that clause does allow profit, a profit markup must be applied to the costs allowed. The changes clause, Finding 6, does not mandate a profit markup, however; it speaks in terms of equitable adjustments, so profit is added only where doing so would be equitable. Even if we agreed with Lessor that the costs are all compensable under the changes clause, we would not find it equitable to grant Lessor a markup for profit, simply because of the happenstance that the contract does not include a suspension of work clause. Whether Lessor should recover under the changes clause or under a breach of contract theory, Lessor is not entitled to a profit on the costs we allow. Laburnum Construction Corp. v. United States, 325 F.2d 451, 459 (Ct. Cl. 1963); see also Urban Data Systems, Inc. v. United States, 699 F.2d 1147, 1151 (Fed. Cir. 1983); Richerson Construction, 93-3 BCA at 130,440; Kenyon Magnetics, Inc., GSBCA 5263, 80-2 BCA 14,624; Holloway Construction Co. v. United States, 4 Cl. Ct. 779, 789 (1984). Recovery of overhead as a markup on Haas Construction's costs is appropriate, however, as a means of compensating for the home office costs that firm should reasonably have expected to recover through direct billings. On the direct costs of $44,361.82, we allow recovery of $4,436.18 in overhead. The ten percent figure is the same one used throughout contract performance. Finding 25(d). Decision The appeal is GRANTED IN PART. GSA shall pay to Lessor $6,083.94 in electricity costs, plus $48,798 resulting from Haas's increased work due to GSA's having delayed the completion of construction under the contract -- a total of $54,881.94. Interest is due on this amount, from the date on which GSA received Lessor's June 7, 1993, claim, until the date of payment, in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 611 (1988). _________________________ STEPHEN M. DANIELS Board Judge I concur: _________________________ EDWIN B. NEILL Board Judge DeGRAFF, Board Judge, concurring. I agree that appellant's renovation of the building was delayed and that GSA is responsible for the delay. I also agree that appellant is entitled to recover the actual costs that it incurred as a result of the delay. I would award these costs as damages for breach of contract because the contract does not provide appellant with a monetary remedy for Government-caused delay. _________________________ MARTHA H. DeGRAFF Board Judge